On 26 January 2023 the Polish Diet (Sejm) adopted finally and almost unanimously the Family Foundation Act. The law will enter into effect in May 2023.
We are extremely happy! We are proud, as: we authored the first version of the Bill that originated under the auspices of the Lewiatan Confederation’s Council of Family Businesses; over the last 5 years we took active part in the work on its final content while representing the interests of Polish entrepreneurs during COUNTLESS meetings in ministries, and the Sejm and Senate commissions; we published HUNDREDS of articles and gave HUNDREDS of interviews; we participated in DOZENS of conferences to promote the idea of a family foundation.
Why family foundation? First of all, because it will enable Polish entrepreneurs to secure the integrity of their business together with its efficient succession while taking care at the same time about the family members’ interest. Thanks to it, even in the case of unforeseeable occurrences, property will be kept by the family for generations to come.
Currently, owners of Polish family businesses can only take advantage of unsatisfactory solutions available under Polish inheritance law (which does not efficiently secure the interests of the business and of the family) or of foreign family foundations (established e.g. in the Netherlands, Liechtenstein or Malta).
The family foundation will bridge the gap in Polish regulations by enabling an efficient implementation of succession plans without having to resort to foreign regulations. It will enable the development of strong multigenerational Polish businesses and will strengthen their position on international markets.
The most important features of the family foundation are as follows:
- it has legal personality
- it ensures multigenerational succession
- it separates family assets from business assets
- it can carry out specific business operations
- it is exempt as an entity from CIT
- its articles of association are flexible
- it can establish local units
The three areas being of most interest to entrepreneurs from the perspective of a family foundation are: the scope of admissible business operations, the taxation on the foundation and its beneficiaries, and the legitim.
The family foundation will be able to carry out the following business operations:
- Disposing of assets – unless acquired solely for subsequent disposal (this does not cover stocks, shares or rights of a similar nature).
- Leasing, renting, and providing access to assets.
- Joining and participating in commercial companies and partnerships, investment funds, and cooperatives.
- Acquiring and disposing of securities, derivative instruments and rights of a similar nature.
- Granting loans to its beneficiaries and to entities related to the foundation.
- Trading in foreign currencies in order to make payments in connection with the family foundation’s operations.
- Producing plant and animal products processed otherwise than industrially (with certain restrictions).
- Forest management.
The family foundation will take advantage as an entity of an exemption from corporate income tax covering its entire business operations. Thus, the foundation will not pay any tax on capital gains (e.g. dividends, revenue from the disposal or redemption of stocks or shares) or on interest charged on loans extended to its related companies or beneficiaries.
Corporate income tax will be levied on the family foundation only in four situations:
- where a benefit is paid to the beneficiaries or the founder – 15% income tax payable by the family foundation;
- in the case of tax on revenues from buildings, where the real property value exceeds PLN 10 million;
- where business operations exceeding the admissible scope are carried out (an income tax at a sanction-based rate of 25% was introduced);
- where the family foundation is wound up, a 15% tax will be levied on the assets released to the beneficiaries in connection with the foundation dissolution, less the tax value of the assets contributed by the founder(s).
Foundation beneficiaries belonging to the founder’s closest family, the so called “zero group” (spouse, children and further descendants, parents and further ascendants, step-children, siblings, and step-parents) as well as the founders themselves, who receive benefits from the foundation, will take advantage of an exemption from personal income tax.
Thus, benefits distributed by the foundation to the aforesaid persons will be subject to a one-time tax of 15% only, payable by the foundation. The only situation where a “double” taxation occurs is where the family foundation distributes benefits to “unrelated” beneficiaries, i.e. those from outside the zero group. In this situation, in addition to the 15% corporate income tax payable by the foundation, an additional personal income tax will be imposed on the individuals receiving the benefits (including following the foundation dissolution) at a rate of 15%.
Acquiring the status of a founder or a beneficiary of a family foundation will exclude the opportunity of applying the Estonian CIT by the company in which the given person is a shareholder. Likewise, taking up by the foundation stocks or shares in a company subject to the Estonian CIT will cause the company to lose its right to apply the Estonian CIT.
The Family Foundation Act caused a revolution in Polish regulations on the legitim, which had not been amended for dozens of years and were the most conservative in Europe. What has changed? First of all, assets contributed to a family foundation will not constitute a part of the estate and once 10 years pass, they will no longer constitute a part of the legitim. This means that heirs who bring a claim after 10 years will not be able to rely on the legitim institution. Moreover, distributions made by the foundation or envisaged for a beneficiary that would be entitled at the same time to a legitim will be applied towards the legitim. A fundamental change which will apply not only to the family foundation but which will be applicable across the entire civil law system in Poland will be the possibility to restrain the legitim. In practice, this means that the legitim payment may be deferred, made in instalments (in principle – over 5 years, with the possibility of this period being extended to 10 years) or decreased. Also, a “statutory” possibility was introduced to resign from the right to a legitim.
The Family Foundation Act is a good law. Polish entrepreneurs deserved it. We trust that the first Polish family foundations will be set up in the first half of 2023.
If we have caught your interest in family foundations, please do not hesitate to contact us. We will be happy to discuss this solution with you and to consider jointly with you whether it could help secure your business and family.
Paweł & Anna Tomczykowscy – partners managing the family tax and law firm Kancelaria Ożóg Tomczykowski